Free Motion to Expedite - District Court of Arizona - Arizona

Lydia A. Jones - 017178 ROGERS & THEOBALD LLP 2 The Camelback Esplanade, Suite 850 2425 East Camelback Road 3 Phoenix, Arizona 85016
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Telephone: (602) 852-5582 [email protected]

Attorneys for Plaintiffs UNITED STATES DISTRICT COURT ARIZONA DISTRICT KAYE HUTTON, as an individual and representative of a class consisting of others similarly situated, Plaintiff, vs. BANK OF AMERICA, N.A., Defendant. No. CV2003-2262-PHX-ROS PLAINTIFF'S MOTION FOR EXPEDITED CONSIDERATION OF THE MATTER CONCERING THE DISCOVERABILITY OF BARBARA DAVIS' NOTES

Plaintiff Kaye Hutton, as an individual and representative of a class consisting of others similarly situated respectfully moves this Court for expedited consideration of the matter before this Court concerning discoverability of Barbara Davis' notes. On November 9, 2005, the Court heard a telephonic oral argument, including on plaintiff's motion to expand and for a conditional ruling on willfulness, as well as defendant's objection to the production of the notes made by Ms. Barbara Davis, now deceased. During the November hearing and by subsequent Order, the Court made a conditional finding of willfulness; the Court also allowed the parties to submit expert reports on the issue of willfulness. Defendant served its expert report on December 20, 2005, and plaintiff's expert report is due January 20, 2006.

Case 2:03-cv-02262-ROS

Document 213

Filed 01/09/2006

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Also during the November 2005 hearing, the Court made preliminary comments that the Ms. Davis' notes, or parts of them, may be discoverable, Defendant requested briefing on the issue, and the Court reserved its ruling. The issue of whether Ms. Davis' notes are discoverable has now been fully briefed for the Court. As the Court may recall, Ms. Davis' notes are directly related to the issue of what the Bank knew or should have known in 2000, and consequently on the issue of willfulness. Accordingly, if the notes are discoverable, then plaintiff's expert would review them in the preparation of his expert report regarding willfulness. Because plaintiff's expert report regarding willfulness is due on January 20, 2006, plaintiff respectfully requests that, if possible, this Court expedite its consideration of the discoverability of Ms. Davis' notes so that such notes, if discoverable, may be used in connection with plaintiff's expert report. DATED this 9th day of January, 2006. ROGERS & THEOBALD LLP

By /s/ Lydia A. Jones

Lydia A. Jones The Camelback Esplanade, Suite 850 2425 East Camelback Road Phoenix, Arizona 85016 Telephone: (602) 852-5582 Attorneys for Plaintiffs

Case 2:03-cv-02262-ROS

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I hereby certify that on this 9th day of January, 2006, I electronically transmitted to the clerk's office using the CM/ECF system for filing and transmittal of a notice of 2 electronic filing to the following CM/ECF registrants:
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Charles L. Chester, Esq. John M. Fry, Esq. Ryley Carlock & Applewhite 5 One North Central Avenue, Suite 1200 6 Phoenix, AZ 85004-4417 Attorneys for Defendant Bank of America, N.A.
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And a courtesy copy hand-delivered to:

Honorable Roslyn O. Silver United States District Court 10 Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 11 Phoenix, AZ 85003-2158
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By /s/ Lydia A. Jones

Case 2:03-cv-02262-ROS

Document 213 3 Filed 01/09/2006

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